delivered the opinion of the Court. ’ When dower has been duly admeasured and assigned, the widow acquires a vested estate for life, and can maintain an action of ejectment to recover the possession. (Jackson, ex dem. Miller, v. Hixson, 17 Johns. Rep. 123.)
The right to dower, until it is legally and duly assigned, is a right resting in action only, and it cannot be so aliened, so as to enable the grantee to bring an action in his own *413name. A feme covert, or a widow, may release her claim of dower, so as to bar herself, hut she can invest no other person with the right to maintain an action for it, until it has been assigned. (Jackson v. Vanderheyden, 17 Johns. Rep. 168.) Cruise (Dig. vol. 1. p. 159. s. 2.) and Gilbert (Tenures, 26.) fully agree with this doctrine. It is laid down by them, that the widow has no estate in the land until assignment, for the law casts the freehold on the heir, immediately on the death of the ancestor.
The question, then, arises, whether the dower in this case has been well assigned. It was not assigned when the trustees sold, and they had nothing to sell but a right of action which was personal, as regards the widow. The third section of the act (1 N. R. L. 60.) provides, that if the widow shall neglect, or refuse to demand her dow er, for forty days after the death of her husband, that then it shall be lawful for the Surrogate of the county where the land lies, upon the petition of the heirs, guardians of minor children, or other proprietors or owners, to issue an order to three disinterested freeholders of the county, to be by him appointed, to admeasure and lay off one third of the land as the widow’s dower. The defendant was not a proprietor or owner of the land, within the purview of the statute $ he claimed to be the owner of the right of dower only, not of the lands out of which the dower was to bo assigned 5 and we have seen, that the widow herself had no estate in the land before the assignment, and, therefore, the defendant could have none* The proceedings, then, before the Surrogate, were coram non judice, for no one applied for admeasurement, having a right under the statute to make such application. The consent of the guardian of the lessor, that the defendant might make such application, is unavailing 5 for it could give no jurisdiction, where none existed before. The evidence offered by the defendant was properly overruled, and the motion for a new trial must be denied.
Motion denied,